Gainesville Probate Lawyers and Attorneys
A. Frequently Asked Questions Involving Florida Probate.
B. The Revocable Living Trust in Florida
C. Florida Probate Litigation Information
D. Florida Trust Litigation Information
E. Estate Planning, Probate, Trust and Guardianship Links of Interest
F. Special Needs Trust Planning and Administration
The Gainesville Probate Lawyer is a Florida law firm with experienced attorneys and lawyers who handle Florida estate planning, Florida probate matters, trust administration, and guardianship matters in probate courts throughout the State of Florida, involving the transfer of wealth.
We handle probate matters, formal probate administration, summary probate administration and ancillary probate administration throughout the State of Florida, including Gainesville, Alachua County, and the surrounding areas.
The founding attorney of the Gainesville Probate Lawyer is C. Randolph Coleman, a Florida attorney with more than 30 years experience in the Florida probate courts. Mr. Coleman is AV rated by Martindale-Hubbell and is a member of the Bar Registry of Preeminent attorneys, which lists only those select lawyers and law firms who have earned the A-V Rating in the Martindale Hubbell Law Directory and have therefore been designated by their colleagues as pre-eminent in their field.
Mr. Coleman also has received a rating of 10.0 out of 10.0, Superb, rating from AVVO.com
If we can assist you with your probate matter in Gainesville, Alachua County, or surrounding areas, or anywhere in Florida, please contact us at (904) 448-1969, or toll free at (866) 510-9099, or email us at Info@TheGainesvilleProbateLawyer.com.
Fee arrangements for the handling of Florida probate and estate planning matters are typically based on a fixed fee determined by agreement between the attorney and the client, for estate planning, trust and probate administration matters. Most often fee arrangements for representation in contested, adversarial or litigation matters, whether probate, trust or guardianship related, are based on hourly rates and the hours expended on behalf of the client. Occasionally, representation in a contested, adversarial or litigation matter may be undertaken on a contingent fee basis, where there is no fee if there is no recovery.
If you would like to discuss the specifics of your individual situation, please contact the experienced estate planning, probate, trust, and probate litigation attorneys by calling toll free 866-510-9099, or email us at Info@TheGainesvilleProbateLawyer.com .
FAQs for Probate in
Probate in Gainesville,
Florida probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
1. Formal probate Administration, with which most of this information deals and
2. Summary Probate Administration, which generally is available if the assets of the estate that are not exempt from creditor's claims do not exceed $75,000 (in Florida the homestead usually is exempt from creditor's claims and therefore the value of the homestead is not included in the $75,000 limitation), or the decedent has been dead for more than 2 years.
2. WHAT ARE FLORIDA PROBATE ASSETS?
Generally,
• a bank account in the sole name of a decedent is a Florida probate asset and is subject to probate administration, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and is not subject to probate in Florida;
• a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset and therefore not subject to probate in Florida, but a policy payable to the decedent's estate is a Florida probate asset and will be subject to probate administration in the Florida court of probate;
• real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is homestead) and therefore subject to probate, but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and will not be subject to probate administration in the Florida probate court;
• real property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
This list is not exclusive but is intended to be illustrative of the different assets subject to probate in a Florida probate administration. (Back to Top)
3. WHY IS FLORIDA PROBATE NECESSARY?
Probate is necessary in
If you need an experienced and qualified Florida probate lawyer for a probate estate in Gainesville or Alachua County, Florida, please call us toll free at 1-866-510-9099.
A last will and testament is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by
To the extent a last will and testament properly devises Florida probate assets and designates a personal representative of the probate estate, the last will and testament controls over the automatic provisions set forth under
Contrary to the belief of some, when there is a probate estate without a will, the decedent’s probate assets are not turned over to the State of
• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the probate property.
• Surviving spouse and lineal descendants.
1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half of the Florida probate estate assets.
2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half of the probate estate.
• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.
• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The Florida probate law provides for further disposition if the decedent is survived by none of these.
• Exceptions to Above. The above provisions are subject to certain exceptions for exempt Florida homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding Florida exempt homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the exempt Florida homestead, with the lineal descendants of the deceased spouse receiving the Florida exempt homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright. Under the Florida law of probate, a surviving spouse, when there are lineal descendants can elect to convert the life estate into a 50% interest in the homestead property.
If you need the assistance of an experienced Florida probate lawyer to represent you in an intestate probate estate proceeding in Gainesville or Alachua County, Florida, please call us toll free at 1-866-510-9099.
(Back to Top)
6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?
While there may be others, the following is a list of persons or entities often involved in the probate process:
• Clerk of the Circuit Court for Alachua County, Florida, or the county in which the decedent resided. The Alachua County Clerk of Court probate office is located at 201 E. University Avenue, Gainesville, FL 32601 and maintains all probate court records (See Question 7).
• Circuit Court for Alachua County, Florida, or the county in which the decedent resided, which is the Florida court of probate (acting through a Circuit Court Judge, See Question 8). The Circuit Court, for Gainesville and Alachua County probate matters is located at 201 E. University Avenue, Gainesville, FL 32601.
• Personal Representative ("executor") of the Florida probate estate (See Questions 9 through 11).
• Florida probate attorney for the Personal Representative (See Question 12).
• Claimants (the estate's creditors) (See Question 13).
• Internal Revenue Service (IRS) (See Question 14).
• Florida Department of Revenue (See Question 15).
• Surviving Spouse and Children (See Question 16).
• Other Beneficiaries of the probate estate (See Question 17).
• Trustee of Revocable Living Trust (See Question 21). (Back to Top)
Probate papers are filed with the Clerk of the Circuit Court, 201 E. University Avenue, Gainesville, FL 32601, for Alachua County, or in the county where the decedent lived at the time of the decedent's death. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate court forms, probate records, and other probate papers filed with the probate clerk for that probate administration. (Back to Top)
A Circuit Court Judge in Gainesville, Alachua County, Florida presides over Florida probate proceedings in Gainesville, or in the county where the decedent resided at the time of death. The Florida probate judge appoints the personal representative ("executor") and issues "letters of administration," also referred to simply as "letters" or "letters testamentary." This Florida probate court document shows to the world the authority of the personal representative to act on behalf of the Florida probate estate. The probate Judge also holds hearings when necessary and resolves all questions of Florida law raised during the probate administration of the estate by entering written directions called "orders" that become part of the probate records. (Back to Top)
The personal representative is the person, bank or trust company appointed by the
The personal representative of the probate estate is directed by the
• Identify, gather, value and safeguard probate assets, and provide the court of probate and all interested persons with a probate inventory.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other probate court forms or probate papers relating to the probate estate with the Florida probate court.
• Serve a "notice of administration" on specific persons, giving information about the probate estate administration and giving notice of requirements to file with the probate court any objections or other probate court forms relating to the probate estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the probate timeline by which their probate claims forms must be filed with the Florida probate court office.
• Object to improper claims and defend lawsuits brought on such claims against the probate estate.
• Pay valid claims against the probate estate.
• File tax returns, including, if necessary the Federal Estate Tax Return (Form 706).
• Pay taxes of the probate estate from the probate assets.
• Employ necessary probate professionals, such as a Florida probate attorney, to assist the personal representative with the court of probate administration.
• Pay administrative expenses.
• Distribute Florida statutory amounts or assets to the surviving spouse or family as required by the Florida law of probate.
• Distribute assets to beneficiaries of the probate estate.
• Close probate administration with the Florida court of probate. (Back to Top)
10. WHO CAN BE A PERSONAL REPRESENTATIVE IN FLORIDA?
• The personal representative could be an individual, bank, or trust company, subject to certain restrictions provided by the Florida law of probate.
• An individual who is either a resident ofFlorida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative of the Florida probate estate.
(Back to Top) • A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative of the Florida probate estate.
If you need the assistance of a Florida probate attorney as personal representative of a probate estate in Gainesville or Alachua County, Florida, please call us toll free at 1-866-510-9099.
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
• If the decedent left a valid last will and testament, the designated personal representative nominated in the last will and testament has preference to serve.
• If the decedent had no will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs of the probate estate under the Florida law of probate. (Back to Top)
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY?
In almost all instances the personal representative must be represented by and needs the legal advice of a
The Florida probate attorney for the personal representative provides legal advice to the personal representative on rights and duties under the
A provision in a last will and testament mandating that a particular Florida probate attorney or law firm be employed as attorney for the personal representative is not binding on the personal representative under the Florida law of probate.
Prior to commencement of Gainesville,
The personal representative is required to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file probate court claims forms with the Florida court of probate. A valid claimant is not viewed as an adversary of the personal representative in the probate process but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of by the Florida court of probate.
If you need the assistance of an experienced Florida probate lawyer to file a creditor's claim in a Gainesville or Alachua County, Florida probate estate proceeding, please call us toll free at 1-866-510-9099.
For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."
The personal representative may be required to file the following returns, depending on income of the decedent, income of the probate estate and size of the probate estate:
• Final Form 1040 federal income tax return, reporting income for the decedent's final tax year.
• One or more Form 1041 federal income tax returns for the probate estate, reporting income for the probate estate.
• Form 709 federal gift tax return(s), reporting certain gifts made by the decedent prior to death.
• Form 706 federal estate tax return (the "death tax"), reporting the gross estate and deductions, depending upon the value of the gross estate assets.
The personal representative may be required to file other tax returns during the probate process. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).
The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the probate estate and may be personally liable for those taxes. If a federal estates taxes return is required to be filed, an estate tax closing letter is necessary to clear title to
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. If a federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estates taxes return is required to be filed with the IRS, then the personal representative is required to file a
Regarding
For probate estates required to file a
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE?
17. WHAT RIGHT DO OTHERS HAVE IN THE FLORIDA PROBATE ESTATE?
Under
For Florida probate estates not required to file a federal estate tax return, the final accounting and papers to close the probate administration with the Florida court of probate are due within 12 months of issuance of letters of administration. This probate timeline period can be extended by the Florida probate court, after notice to interested persons.
The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estate tax return is required, the final accounting and papers to close the probate administration are due to be filed with the probate clerk of court within 12 months from the date the tax return is due. This date is usually extended by the Florida probate court because often the IRS' review and acceptance of the estates taxes return are not completed within that probate timeline period.
Probate estates that are not required to file a federal estate tax return and that do not involve probate litigation or estate litigation may often close the probate administration in the Florida court of probate within five or six months. (Back to Top)
The personal representative, the
The probate fee for the personal representative
Likewise, the probate fee for the for the personal representative's Florida probate attorney is usually determined (1) as agreed among the Florida probate attorney, the personal representative and the persons who bear the impact of the probate fee, (2) as the amount presumed to be reasonable calculated under Florida probate law, if the amount is not objected to, or (3) as determined by the Florida probate judge, applying the Florida law of probate, the probate code, and the probate rules.
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
Summary Probate Administration is generally available if the value of the estate subject to probate in
Under Summary Probate Administration, the persons who receive the probate estate assets remain liable for claims against the decedent for two years after the date of death. This probate timeline period may be reduced in Summary Probate Administration by publication of notice in a local newspaper
Another alternative to Formal Probate Administration is "Disposition Without Administration." This is available if probate estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.
If the decedent was not a
If the decedent created a
If you need the assistance of an experienced Florida probate lawyer in the administration of a probate estate in Gainesville, Florida, or throughout the State of Florida, put our 30+ years of experience in the Florida probate courts to work for you. Please contact us toll free at 866-510-9099, or email us at Info@TheGainesvilleProbateLawyer.com.
This material represents general legal informatoin about Gainesville, Florida probate law. Since the Florida probate law is continually changing, some provisions may be out of date. It is always best to consult an experienced Gainesville, Florida probate lawyer or attorney about your legal rights and responsibilities regarding your particular case. If we can assist you with your Florida probate, please contact us toll free at 866-510-9099 or by email at Info@TheGainesvilleProbateLawyer.com
Legal Notice and Disclaimer. The materials within this website are for informational purposes only. This information does not constitute legal advice and should not be relied upon by any individual. Communication of this information is not intended to create, and receipt does not constitute, the establishment of an attorney-client relationship. Internet users and readers should not act upon this information without first seeking professional legal counsel for your particular circumstances. The information on this website is provided only as general information which may or may not reflect the most current legal information.
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